Herbert has now accused US District Judge Robert Shelby of being an “activist”, and said his strike-down of the same-sex marriage ban was one step away from a “dictatorship”.

“I think that’s very, very dangerous, in fact, when we have elected officials picking and choosing which laws they’re going to enforce,”

He said the state needed to “put its best foot forward in defending its Constitution”, and defended the fact that it will cost taxpayers in the state at least $300,000 (£180,000) to pay to hire outside counsel when it goes to the 10th Circuit Court of Appeals.

“The debate shouldn’t be same-sex marriage. It should be states’ rights,” Herbert continued, but said it had not been: “Because you have an activist on the bench.”

He went on to further criticise Judge Shelby’s decision to deem the ban unconstitutional, saying: “I have empathy for their plight,” Herbert said. “I have empathy for … their confusion that’s been created by the Judge Shelby ruling.”

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